| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DRLJACA -v- WESTRAC PTY LTD [2013] WADC 122 (S) CORAM : GOETZE DCJ HEARD : 6-8, 13-16 MAY 2013 & ON THE PAPERS DELIVERED : 25 JULY 2013 SUPPLEMENTARY
DECISION : 8 NOVEMBER 2013 FILE NO/S : CIV 1216 of 2010 BETWEEN : RADA DRLJACA Plaintiff
AND
WESTRAC PTY LTD
Defendant
Catchwords: Costs order following dismissal of plaintiff's claim - Turns on own facts Legislation: Nil Result: Plaintiff to pay only part of successful defendant's costs
(Page 2) Representation: Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Ms W S Meggison
Solicitors:
Plaintiff : Vertannes Georgiou
Defendant : Panetta McGrath
Case(s) referred to in judgment(s):
Drljaca v Westrac Pty Ltd [2013] WADC 122
(Page 3)
1 GOETZE DCJ: On 25 July 2013, the plaintiff's claim against the defendant was dismissed. The parties were not then in a position to either agree or argue the issue of costs. Leave was granted enabling the parties to file written submissions, together with any supporting affidavits that may be required. The plaintiff and defendant have now duly filed submissions with supporting affidavits.
2 The plaintiff claimed that she fell from the defendant's Caterpillar front end loader by reason of it not having any side ladders to assist her climb onto the loader and descend from it. Essentially, the plaintiff's evidence was not accepted. The defendant's documentary evidence clearly demonstrated that the construction of the subject loader included all relevant ladders and the shipping order from Tokyo to Fremantle revealed the ladders to have been line assembled in the factory. 3 The issue as to costs arises by reason that the defendant made ongoing discovery from time to time, including at the trial, which began on Monday 6 May 2013. 4 Discovery was given by the defendant, relevantly, as follows: (Page 4)
966 loader and 236-9000 but it is impossible, without more, to link the ladder group to the 317-2517 industrial arrangement one page document (exhibit 1.10) in (c) above. Further, there was nothing to explain the 236-9000. 3. On 26 March 2013, the defendant discovered: (a) The shipping order dated 4 February 2008 (exhibit 1.21). This document refers to a 236-8954 loader with a 317-2517 industrial arrangement and the fact that such industrial arrangement was line or factory installed on the front end loader in Japan, as to which see the reasons for decision Drljaca v Westrac Pty Ltd [2013] WADC 122 [79] – [80]. (b) A list of standard specifications relating to the 236-8954 loader AR-STD966H. It also identified the 236-8957 general arrangement, the 236-9000 chassis arrangement and the 236-8978 ladder group. It also included a diagram of the ladder group (exhibit 1.23). (c) The pre shipping check list (Japanese version) (exhibit 1.21). 4. On 11 April 2013, the defendant provided a substituted list of documents including: (a) The TMI part number consist breakdowns for the 236-8954 loader, the 236-8957 general arrangement, the 236-9000 chassis arrangement and the 236-8978 ladder group, all dated 2 April 2013 (exhibits 1.36, .37, .38 and .39 respectively). (b) The service information system documents relating to certain front end loaders with specified serial numbers, including that of the subject loader, including the 236-8954 loader tractor arrangement, the 236-8957 general arrangement, the 236-9000 chassis arrangement and the 236-8978 ladder arrangement, all dated 2 April 2013 (exhibits 1.36, 1.38, 1.39, 1.44, 1.45, 1.46, 1.47 and 1.48 respectively). (c) The pre shipping check list (English version) (exhibit 1.21). (Page 5)
5. On 11 May 2013, the defendant discovered the consist breakdown relating to the 317-2517 industrial arrangement (exhibit 1.73). This refers to the 236-9000 chassis arrangement, which is common to both the 236-8957 general arrangement and the 317-2517 industrial arrangement. The same 236-8978 ladder group is comprised within the 236-8957 general arrangement and the 317-2517 industrial arrangement. 5 The part consist breakdowns for the 236-8957 general arrangement with the 236-9000 chassis arrangement and the 236-8978 ladder group were discovered on 26 March 2013 but, the 317-2517 industrial arrangement with the 236-9000 chassis arrangement was not discovered until 11 May 2013, being after the first week of trial. 6 Following discovery on 11 April 2013, it should have been apparent that the 236-8954 standard loader included the 236-8957 general arrangement and the 236-9000 chassis arrangement, which in turn included the 236-8978 ladder group. However, some explanation as to the cascading effect of these documents would definitely have been of assistance to the plaintiff and her solicitors 7 In the case of the subject loader however, the 236-8957 general arrangement was substituted by the 317-2517 industrial arrangement on 11 May 2013. 8 Again, some explanation was required to assist in the understanding of all of these documents discovered on 11 May 2013. In the context of this trial, it was important to appreciate that the ladder formation of the 317-2517 industrial arrangement was the same as that of the 236-8957 general arrangement. 9 Until all these exhibits had been provided, it was not known what the 317-2517 industrial arrangement comprised, including ladders. As the plaintiff's solicitor said in his affidavit sworn 23 August 2013, had proper discovery been given before the defendant by the listing conference on 14 January 2013, he would have strongly recommended to the Plaintiff that she not proceed any further with her case and negotiate a resolution of her claim. 10 This assertion cannot be refuted. The knowledge that the loader and its various component parts were computerised in consist breakdown documents is apparent from the first such document discovered ie, exhibit 1.10 being the part consist breakdown for the 317-2517 (Page 6)
industrial arrangement discovered on 17 December 2012 and this was more than a year after the pre-trial conferences. Listing conferences were adjourned at various times to 14 January 2013. Further, the column in the shipping order (exhibit 1.21) referring to the factory installation of the 317-2517 industrial arrangement was not explained to the plaintiff until trial when Mr Osugi gave evidence on behalf of the defendant. 11 If the plaintiff's solicitors had the benefit of the shipping order specifying the factory installation of the industrial arrangement and all of the relevant consist documents specifying the component parts of the loader and a diagram thereof, including the ladder arrangement, together with the pre-shipping checklist and an explanation at a pre-trial conference of the significance of those documents then, they must surely have advised the plaintiff that her oral evidence would be strongly contradicted by the written records. The trial would then most likely have not proceeded. 12 It is necessary when considering the costs order for there to be some balance between dismissing this action on the merits, including rejection of the plaintiff's evidence and acceptance of the defendant's documents which should, at the very latest, have been provided before the final listing conference. But they were not all provided until the trial was well under way. Had the full and proper discovery been provided by the listing conference on 14 January 2013, it is most unlikely that the trial would have proceeded. Indeed, a further pre-trial conference should have been required before trial with all documents to hand. 13 In the circumstances, the order for costs is that the plaintiff do pay the defendant's costs of the action to 14 January 2013 to be taxed.
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